Raj Narain vs Deputy Director of Consolidation and others

Prakash Krishna, J.—The only point mooted in the present writ petition is whether the sale-deed executed by Custodian Evacuee Property in favour of the petitioner in respect of a property declared as evacuee property could be ignored by the Consolidation Courts during the course of consolidation operation in the village.

The facts are not much in dispute and are almost undisputed. One Sri Mehdi Hasan owned plot no. 655/2 of Khata No. 137, plot no. 189 of Khata No. 1 and plot no. 106/2 of Khata No. 51 of Village Sarai Malik, Gaddu, Machlishar, District Jaunpur. A notice dated 20th October, 1952, u/s 7 of Administration of Evacuee Property Act, was issued to Sri Mehdi Hasan to show cause as to why the property referred above be not declared as the evacuee property. The disputed plots on 25th December, 1952 were declared as evacuee property by the Assistant Custodian Evacuee Property, Jaunpur. By means of a notification dated 26th November, 1957 issued u/s 12 of the Displaced Persons (Compensation and Rehabilitation) Act, the Central Government acquired the disputed property. Thereafter, the said property was purchased by the petitioner and certificate of transfer was issued on 17th October, 1969. The Managing Officer, Administrator Evacuee Property, Lucknow on 25th November, 1972 executed a sale-deed on behalf of the President of India in favour of the petitioner. The name of the petitioner was mutated in the revenue record i.e. khatauni 1377 F to 1379 F.

A dispute arose when one Sri Ram and certain other persons claimed sirdari right in plot no. 216 and filed objections under the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act") before the authority concerned. The Consolidation Officer by the order dated 31st October, 1972, while deciding those objections took a view that the property in dispute is Gaon Sabha property. Accordingly, he ordered that the name of the petitioner be expunged from the revenue record and in his place the disputed plot be recorded in the name of Gaon Sabha. The objections filed by Sri Ram were also rejected. The matter was carried in three appeals by the petitioner as well as Sri Ram and others.

All the three appeals were consolidated and decided by a common judgment dated 24th April, 1973 by the Settlement Officer, Consolidation, who accepted Appeal No. 170 of the petitioner with respect to plot no. 106/2 but dismissed the other appeals. The order of the S.O.C. has been confirmed in Revision No. 133/75, which was preferred by the petitioner, by the impugned order dated 20th February, 1976.

Heard Sri U.S.M. Tripathi, learned counsel for the petitioner, Dr. (Ms.) Madhu Tandon, learned standing counsel for the contesting respondents no. 1, 2, 3 and 5, and Shri M.N. Singh, learned counsel for the Gaon Sabha.

As stated herein above, the only point for consideration is whether the sale-deed executed in favour of the petitioner on behalf of the President of India by the Managing Officer, Administrator Evacuee Property could be ignored in view of the fact that the plot in dispute has been held to be banzar and pond. The Deputy Director of Consolidation has found that in the basic year plot nos. 655 and 450/1 were recorded as banzar lands; 189/1 and 216 were recorded as ponds.

Learned counsel for the petitioner submits that in view of the fact that the proceedings were initiated against Sri Mehdi Hasan to declare the disputed plots as evacuee property and disputed plots were declared as evacuee property and were sold to the petitioner, no objection was filed by Gaon Sabha, the Gaon Sabha now has no say in the matter. Submission is that in view of Section 48-A of the Act, which provides special provision with respect to evacuee property, the consolidation courts were not competent to call in question or vary or reverse any decision of the custodian, evacuee property.

Indisputably, in the case on hand, the property in dispute was declared as evacuee property. The petitioner is purchaser of the property in dispute from the Managing Officer, Administrator Evacuee Property by means of sale-deed dated 25th November, 1972.

In Smt. Masoom Banoo Vs. Hari Singh and Others, a Division Bench of this Court vide para-10 has held as follows:

It will be seen that the consolidation authorities cannot call in question or vary or reverse any decision of the Custodian in relation to title to an evacuee property. The provisions of the Consolidation of Holdings Act requiring such title proceedings to be stayed are not applicable to proceedings before the Custodian. Under clause (b) of sub-section (1) the consolidation authorities cannot even refer for determination any question of title in relation to land which is an evacuee property. These provisions clearly exclude the jurisdiction of the consolidation authorities to decide the title to evacuee property.

In view of the above, the consolidation courts were not justified in not giving the effect to the sale-deed dated 25th November, 1972 which stands in the name of the petitioner. It is not necessary to deal with this point any further in view of the authoritative pronouncement of this Court. Section 48-A of the Act provides complete answer to the question.

Learned counsel for the Gaon Sabha or of the State of U.P. could not place any material to support the impugned orders.

All the three orders of the Consolidation Officer, Settlement Officer, Consolidation and Deputy Director of Consolidation dated 31st October, 1972, 24th April, 1973 and 20th February, 1976, so far as it is with regard to the rights of the petitioner are concerned, are hereby, set aside. The objection filed by Raj Kumar has been dismissed and that order has attained finality.

By way of clarification, it is added that in view of the sale-deed dated 25th November, 1972 the petitioner (since deceased) is entitled to hold the property in dispute as bhumidhar.

In the result, the writ petition succeeds and is allowed with cost of Rs.5000/-(Rupees Five Thousand only) payable by the respondent no. 4 Gaon Sabha to the petitioner.